Congress Bugs CIA

The latest Democratic attack on the intelligence community emanated from testimony by CIA Director Leon Panetta about a planned intelligence program that was not briefed to congressional committee leaders and had dated back to 2001.

The Democrats’ feigned outrage is about a program that — according to HUMAN EVENTS’ sources and now several news reports — was planned but never put into action. Now House Speaker Nancy Pelosi (D-Ca) is suggesting that the House and Senate Select Committees on Intelligence investigate the program.

Democratic members of the House Intelligence Committee released a letter saying that the CIA “affirmatively lied” about the top-secret plan.

“This committee has been misled, has not been provided full and complete notifications and [in at least one case] was affirmatively lied to,” penned Chairman Silvestre Reyes (D-Tx). Many Democrats agree.

“The executive branch of government cannot create programs like these programs and keep Congress in the dark. There is a requirement for disclosure,” commented Sen. Dick Durbin (D.-Il.) on ABC. “To give the president unbridled authority goes way beyond the United States Constitution […] It has to be done in an appropriate way so it doesn’t jeopardize our national security, but to have a massive program that is concealed from the leaders in Congress is not only inappropriate; it could be illegal."

"I’d like to know if it’s true or not. I mean, nobody in this country is above the law […] You can’t have somebody say, well, if you’re vice president, you don’t have to obey the law," said Sen. Patrick Leahy (D.-Vt.).

"This is a big problem, because the law is very clear. And I understand the need of the day, which was when America was in shock [after September 11],” said Sen. Dianne Feinstein (D.-Ca.) on Fox News. "I think you weaken your case when you go outside of the law.”

However, in an interview with NPR, former CIA director and retired Air Force Lt. Gen. Michael Hayden said that he “never felt [he] had any impediment in briefing Congress.” This admission may potentially absolve those like former vice president Dick Cheney who have been accused of actively suppressing information.

Are these accusations by Democrats accurate? Did the CIA — and the executive branch in general — violate the law when it failed to disclose this project to Congress? The National Security Act of 1947 — signed by President Harry S. Truman — among other things, designated the relationship between intelligence agencies and the Congress following World War II.

“A finding may not authorize any action that would violate the Constitution or any statute of the United States […] to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of Central Intelligence and the heads of all departments, agencies, and entities of the United States Government involved in a covert action.”

On December 4, 1981, under Executive Order 12333, the 1947 Act was amended and updated. Section 413 on “General Congressional Oversight Provisions” was added. House Democrats will try to point to the following as the “broken” law: “The President shall ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by this subchapter.”

But this argument is weak. Not only is the provision limited by the “significant anticipated” language (which may or may not apply to the planned CIA program). And that provisoin is followed by these lines:

“Nothing in this subchapter shall be construed as requiring the approval of the congressional intelligence committees as a condition precedent to the initiation of any significant anticipated intelligence activity.”

Executive Order 12333 defines ‘intelligence activities’ as “all activities that agencies within the Intelligence Community are authorized to conduct pursuant to this Order.” But here’s the rub: Hayden referred to the unreported project as an “idea.” Which is far short of an ‘intelligence activity.’

Is there a legal requirement for the White House to inform Congress of something it considered and then dropped?

Honi Soit Qui Mal y Pense — evil to him who evil thinks — may have been the motto of the medieval British Order of the Garter, but it’s not US law.

And the answer to it is not, as House Democrats have proposed, to amend the law to include more than the “big eight” — the House Speaker and Minority Leader, the Senate Majority and Minority Leaders and the chairmen and ranking minority members of the intelligence committees — in the group that gets the classified intelligence briefings. The increased danger of leaks has caused even the White House to opposed that proposal and threaten a veto of the 2010 Intelligence Authorization Bill to which it was attached. The legal obligation the CIA to share intelligence with Congress has a storied, uneven past. States a CIA report regarding the historical and legal relationship between CIA and the Congress:

“Neither the constitutional responsibilities of the Congress nor the two statutory mandates cited above [laws passed in 1980 and 1992 laws regarding CIA provision of intelligence to Congress], however, have been interpreted by the executive to require that all intelligence be turned over to Congress, nor has Congress historically sought such access.”

The report goes on to say that not yet has a case been brought up in a U.S. court that deals with the refusal of the executive to provide intelligence for Congress as a constitutional infraction, and therefore the courts have never passed an opinion on the matter.

The report also argues that, with regard to classified CIA intelligence, Members of Congress are “observers” and not necessarily “customers” — while they may occasionally express interest in matters of executive intelligence, they rarely keep abreast with the day-to-day procedure of the CIA. Members are often not acquainted with the requirements of handling classified information, and can thus pose a potential risk by leaking information or mishandling confidential material.

While the CIA has called for a systematic, lucid “written rules of the road,” these have yet to be drafted — they are not codified, not systematized, not written into law. In addition, the CIA looks to ensure that, if such rules were bilaterally established, classified intelligence would not be used for political purposes.

The bottom line, as the report says, is that “there are no written rules, agreed to by both branches, governing what intelligence will be shared with the Hill or how it will be handled.” From this analysis, it appears very far-fetched for Democrats to insist that laws were broken by the Bush administration by failing to notify Congress of this planned but not undertaken operation.